Decision No. 237-R-2011

June 28, 2011

File No. R8050/611-016.20

Introduction

[1] On April 7, 2011, the Corporation of the Municipality of Sioux Lookout (Municipality) applied to the Canadian Transportation Agency (Agency) for an order rescinding Agency Order No. 1998-R-360 dated June 30, 1998 to reflect the proper road authority and the associated cost responsibilities at the road crossing at Lac Seul Road and mileage 16.20 of the Canadian National Railway Company Redditt Subdivision, west of Hudson, near Sioux Lookout, in the province of Ontario.

Background

[2] The Canadian Transport Commission Railway Transportation Committee issued Order No. R-27418 dated August 21, 1978 authorizing the Ministry of Natural Resources of the Province of Ontario (MNR) to construct and maintain the Lac Seul Road crossing. The Order specifies that the MNR is authorized to construct and maintain, at its own expense, the said crossing. Clause 5 of the Order specifies that the cost of installation, maintenance and operation of the crossing protection shall be paid by the MNR.

[3] In 1997, the Minister of Municipal Affairs and Housing of the Province of Ontario appointed a Commission under section 25.3 of the Municipal Act, R.S.O. 1990, c. M.45 for the Sioux Lookout Planning Area, at the request of the Council of the Town of Sioux Lookout to develop a restructuring proposal for the locality composed of the geographic area of the Sioux Lookout Planning Area.

[4] As a result of the Commission, a Restructuring Order dated June 30, 1997 was issued to expand the geographic area of the Municipality to include a large territory that includes the railway crossing.

[5] In 1997, the Ministry of Transportation of Ontario (MTO) applied to the Agency to vary Order No. R-27418 to have the Municipality named as the road authority and to amend the responsibility of maintenance to the new road authority.

[6] On January 20, 1998, the Municipality agreed to assume 50 per cent of the costs of maintaining the crossing. Lac Seul First Nation also accepted to pay 50 per cent of the said costs.

[7] The Agency issued Order No. 1998-R-360 varying Order No. R-27418 and named the Corporation of the Town of Sioux Lookout as the road authority. The Agency further added a clause that reads: "The cost of maintaining the crossing and the said protection shall be paid fifty per cent by the Corporation of the Town of Sioux Lookout and fifty per cent by Lac Seul First Nation."

[8] The Municipality disputed the MTO's interpretation of the Restructuring Order. On January 9, 2009, the Municipality brought the issue to court for a determination as to who is the road authority at the Lac Seul Road where the railway crossing is located.

[9] The Province of Ontario, in response to the court application, provided evidence that the Municipality was not the road authority at the Lac Seul Road crossing.

[10] On December 17, 2010, the Ontario Court of Appeal determined that the Municipality is not the road authority at the crossing and has no jurisdiction at the crossing.

[11] On May 11, 2011, the MNR indicated that it agrees with the Municipality's request for rescission of Order No. 1998-R-360 and the re-issuance of Order No. R-27418. The MNR added that it agrees to the maintenance of the Lac Seul Road crossing pursuant to Order No. R-27418.

[12] The Municipality requested that relief be granted as the Agency may deem reasonable.

Findings and Conclusion

[13] The Agency has reviewed the submission and has found, pursuant to section 32 of the Canada Transportation Act, that there has been a change in the facts or circumstances pertaining to Order No. 1998-R-360 since it was issued and that this Order should be rescinded.

[14] Accordingly, the Agency, pursuant to section 32 of the Canada Transportation Act, rescinds Order No. 1998-R-360 of the Canadian Transportation Agency dated June 30, 1998 varying Order No. R-27418 dated August 21, 1978.

With respect to relief, the Agency's practice for request of relief has been to review each application on its own merit and to award costs only in special or exceptional circumstances. In this case, the Agency determines that the Municipality did not present evidence of special or exceptional circumstances warranting costs to be awarded.

Members

• J. Mark MacKeigan
• Geoffrey C. Hare